Human Rights and Jus Cogens
Among political theorists and philosophers, conventional wisdom holds that human rights are moral rights that all human beings share simply by virtue of their common humanity. Since World War II, public international law has embraced the concept of human rights, accepting a wide range of international norms as full-bodied legal constraints on state action. Nonetheless, international law has yet to develop a robust theory capable of supplying a philosophical account of human rights as distinctively legal obligations. Although moral and political philosophers have endeavored to explain the theoretical basis of human rights construed as moral rights, none of the leading theories offers a persuasive justification for international human rights law (IHRL) as it has been understood and practiced for the past six decades. Uncertainty regarding the philosophical basis of human rights has impeded efforts to clarify the scope, justiciability, and cross-cultural relevance of IHRL.
This is especially true of human rights that international law treats as peremptory. These rights belong to a class of norms called "jus cogens” (literally, "compelling law”). Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority. The influential Restatement on Foreign Relations of the United States (Restatement) defines jus cogens to include, at a minimum, the prohibitions against genocide; slavery or slave trade; murder or disappearance of individuals; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and "the principles of the United Nations Charter prohibiting the use of force.’ The concept of jus cogens has been widely perceived to establish a normative hierarchy within international law, endowing certain fundamental norms such as the prohibitions against slavery and genocide with a quasi-constitutional status vis-a-vis ordinary conventional and customary norms.
There is considerable overlap between jus cogens and IHRL, but the two sets are not fully coextensive. Jus cogens is narrower than IHRL because not all human rights are absolute; limitations on freedom of expression and assembly, for example, are at times permissible. But jus cogens is also wider than IHRL because some peremptory norms, such as the prohibition on military aggression, are not part of IHRL. These sets of norms have distinctive histories in international law, though here too there is significant overlap. More significant for present purposes than their partially shared content and history, however, is the forceful challenge that both present to the classical conception of sovereignty according to which states enjoy plenary and exclusive jurisdiction within their territory. Under IHRL and jus cogens alike, states and their agents are held accountable to international legal standards protective of vulnerable parties subject to state power.
We argue that the fiduciary model offers a persuasive and unified account of IHRL and jus cogens because it brings them together within a relational conception of sovereignty that treats states (and state-like entities) as fiduciaries of the people amenable to their jurisdiction. The basic idea is that the norms of IHRL and jus cogens emanate from a fiduciary relationship between the state and persons subject to its powers. The state's fundamental duty is to provide a regime of secure and equal freedom. It fulfills this duty, in part, by governing through norms that conform to two intermediate regulative principles. The two principles are intermediate because they fall between, on the one hand, secure and equal freedom, and on the other, concrete norms of international law. They are regulative because they help specify particular normative requirements of secure and equal freedom. The first principle is the Kantian maxim of non-instrumentalization that requires agents to be treated as ends always; the second is the republican principle of non-domination that proscribes the subjection of individuals to arbitrary power. Both reflect an ideal of independent agency. Independent agency is the capacity of an agent to exercise her powers of self-determination without wrongful interference (instrumen- talization) or the threat of such interference (domination). For ease of reference, we will sometimes refer to the conjunction of non-instrumentalization and nondomination as simply "independence,” though at various points we will treat the two ideas separately.
The norms of IHRL and jus cogens are all justifiable as concrete specifications of these two principles. The fiduciary theory thus explains the relevant international norms as aspects of the state's fiduciary duty to guarantee a regime of secure and equal freedom. We shall see that the identification of such norms is further aided by indicia supplied by features of the state-subject fiduciary relationship as well as by Lon Fuller's internal morality of law.
As an interpretive theory, the fiduciary model explains the presence and juridical character of the norms that lie at the core of IHRL and jus cogens respectively. As a prescriptive theory, the fiduciary model supplies valuable guidelines for distinguishing peremptory human rights from others that are appropriately subject to limitation or derogation. Additionally, the prescriptive side of the fiduciary model specifies some norms as jus cogens that are not typically viewed as such (e.g., the prohibition on corruption), while casting doubt on the commonly alleged peremptory status of others (e.g., the prohibition on piracy).
By reframing human rights and peremptory norms as legal entitlements grounded in the state-subject fiduciary relationship, the fiduciary theory provides a fresh perspective. These norms are relational and institutional because they respond to threats that typically arise from relational interactions between public institutions and the people they serve. They are legal and nonpositivist because they constitute necessary conditions of legal order under a Fullerian and Kantian theory of right. They are republican because they answer to the ideal of non-domination. They are practical in that they take seriously the rights enshrined in the leading international conventions. Because human rights and peremptory norms under the fiduciary theory are necessary to guarantee every moral person's enjoyment of secure and equal freedom, they are aspirational and universal in scope. But they are also deliberative in that they are amenable to refinement and the principle of subsidiarity through democratic deliberation.
This chapter develops the fiduciary theory ofIHRL and jus cogens in several stages. We begin by reviewing briefly the historical development of peremptory norms and the emergence of IHRL during the postwar era. We explain how the international community's failure to adopt a unifying theory has undermined efforts to specify determinate, justiciable, and cross-cultural international norms. We then suggest that leading contemporary accounts of human rights and peremptory norms do not provide satisfactory answers to central questions pertaining to human rights and jus cogens. As an alternative to these accounts, we defend the fiduciary theory by showing how it can explicate the character, scope, and content of IHRL and jus cogens.
-  See, e.g., Jack Donnelly, International Human Rights 18 (1998); Alan Gewirth,Human Rights: Essays on Justification and Applications 1 (1982) [hereinafter Gewirth, Justifications and Applications]; H.L.A. Hart, Are There Any NaturalRights?, 64 Phil. Rev. 175 (1955); A. John Simmons, Human Rights and World Citizenship, inJustification and Legitimacy: Essays on Rights and Obligations 185 (2001).
-  There are two recent and important exceptions that explicitly attempt to explain internationalhuman rights as international legal rights: Allen Buchanan, The Heart of Human Rights274 (2013) (defending a pluralist justification that envisions IHRL as requiring states to protect“basic equal status for all” and to provide “the conditions for leading a decent or minimally goodlife”); Patrick Macklem, The Sovereignty of Human Rights (2015) (arguing that IHRLserves to mitigate the adverse effects of international law's creation of international legal orderthrough its distribution of sovereignty to states).
-  See Vienna Convention on the Law of Treaties art. 53, openedfor signature May 23, 1969, 1155U.N.T.S. 331, 8 I.L.M. 679 [hereinafter VCLT].
-  Restatement (Third) of Foreign Relations of the United States § 702 cmts. d-i,§ 102 cmt. k (1987) [hereinafter Third Restatement].
-  See, e.g., Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 Eur. J. Int'l L. 566,566 (1997) (asserting that “jus cogens or imperative norms . . . presuppose relationships of normative hierarchy”); Dinah Shelton, Normative Hierarchy in International Law, 100 Am. J. Int'lL. 291, 323 (2006) (describing “universal norms” in international law as “a matter of necessity”).
-  In this chapter we will generally refer to states as the hearers of fiduciary authority and obligation, as they are the primary bearers of sovereign authority under international law. But asdiscussed in Part IV of this chapter, and as we shall discuss in some detail in Chapter 8, certaininternational institutions and substate or nonstate entities may also hold public powers, and sothe fiduciary theory is available to explain their authority and obligations, too.